R. v. H., 2015 ONSC 1031
COURT FILE NO.: 12-SA5106
DATE: 2015/02/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
– and –
J.J.H.
Accused
Michael Boyce, for the Crown
David Hughes, for the Accused
HEARD: February 10-11, 2015
PRE-TRIAL RULING #1 REGARDING Voluntariness and
Charter ss. 7 and 24(2)
AITKEN j.
Nature of the Application
[1] JH stands charged with fifteen sexual offences against JN. Immediately following his arrest on September 14, 2012, JH was interviewed by Detective Andrea Giampaolo. The Crown seeks a ruling that JH’s videotaped statement was voluntary. The Defence argues that the Crown has not proven beyond a reasonable doubt that JH’s statement was voluntary. Additionally, the Defence argues that the statement should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter] because JH’s right to remain silent under s. 7 was infringed.
Voluntariness and the Confessions Rule
[2] Under the common law confessions rule, the Crown must prove beyond a reasonable doubt that any inculpatory statement made by JH to the police was voluntary (R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 and R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405). The analysis under the confessions rule is contextual. As outlined in Oickle, some of the factors to be considered by the court include whether the police made any threats or promises; whether the circumstances in which the statement was made were oppressive; whether the accused had an operating mind when the statement was made; and whether the police used trickery in order to get the accused to make the statement. The first three factors are generally considered together. The use of police trickery to obtain a confession is a distinct inquiry.
[3] The twin goals of the confession rule are to protect the rights of accused persons without unduly limiting society’s need to investigate and solve crimes (Oickle, at para. 33). It also exists in an effort to ensure that any confession is reliable, as confessions that are not voluntary are more likely to be unreliable.
[4] As Charron J. stated in Singh, at para. 30, in addition to the concern about the reliability of any confession, the complex of values that informs the requirement that a confession be voluntary includes “respect for the individual’s freedom of will, the need for law enforcement officers themselves to obey the law, and the overall fairness of the criminal justice system” (see also Oickle, at paras. 69-70).
[5] The requirement that an inculpatory statement to the police be voluntary in order to be admissible in evidence incorporates the principle that a person is neither obliged to give information to the police nor answer their questions. It has long been recognized that there is an obligation on the police to advise suspects in criminal investigations of their right to remain silent. In determining whether a statement made to the police by a detained person was made voluntarily, an important factor is whether or not the person was appropriately cautioned before the statement was made (Singh, at para. 31, and the authorities cited therein).
Right to Remain Silent and Right to Counsel
[6] The right to remain silent has its origins in the common law and is now entrenched in s. 7 of the Charter under the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. It is a principle of fundamental justice that “a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent” (R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, at para. 21). A person’s right to remain silent does not include a right not to be questioned by the police (Singh, at para. 28). Rather, it protects a person from police conduct that removes one’s ability to exercise free will in deciding whether or not to speak to the police.
[7] In determining whether or not a person’s right to remain silent has been infringed, the court must consider: (1) whether the person, once detained, was advised of his right to remain silent; and (2) whether the person, once detained, was advised of his right to consult counsel and then afforded the right to do so without delay. The latter right is contained in s. 10(b) of the Charter which reads: “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”
[8] As McLachlin J. stated in Hebert, at para. 52: “[t]he most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence.” She went on to affirm that, although the state is not obliged to protect a suspect against making an inculpatory statement, the state is obliged to allow the suspect to make an informed choice about whether or not he will speak to authorities. To assist in that choice, the suspect is given the right to counsel. At para. 55, McLachlin J. elaborated as follows:
The guarantee of the right to counsel in the Charter suggests that the suspect must have the right to choose whether to speak to the police or not, but it equally suggests that the test for whether that choice has been violated is essentially objective. Was the suspect accorded his or her right to consult counsel? By extension, was there other police conduct which effectively deprived the suspect of the right to choose to remain silent, thus negating the purpose of the right to counsel?
[9] In Hebert, McLachlin J., at paras. 62-65, emphasized how s. 7 of the Charter is concerned with both preserving the rights of detained individuals and maintaining the repute and integrity of our system of justice. The latter goal can only be accomplished through a balancing of individual rights and state interests in criminal proceedings. Thus, although s. 7 guarantees the individual’s life, liberty and security of person, it does so only to the extent that it prohibits the state from depriving the individual of these interests through unfair or improper use of state power, contrary to the principles of fundamental justice. When attempting to achieve this balance, erring on the side of either the individual or the state can bring the administration of justice into disrepute.
Interrelationship of the Common Law Confessions Rule and s. 7 of the Charter
[10] In Singh, at paras. 37-39, Charron J. explained that, when a court is considering whether an accused’s statement was voluntary, it must scrutinize whether the accused was denied his or her right to silence. In circumstances where a detained accused person, who has been advised of his or her right to remain silent, makes a statement to a person, who is obviously a “person in authority”, during the course of an interrogation, the confessions rule effectively subsumes the constitutional right to silence. Thus, a finding of voluntariness beyond a reasonable doubt means that there can be no finding of a Charter violation of the right to silence in regard to the same statement. This is because, in such circumstances, a finding of voluntariness includes a finding that the accused exercised his or her free will in making the statement, and all that the right to silence gives an accused in such circumstances is the right to exercise his or her free will in choosing whether or not to speak. In other words, the exercise of the right to silence is within the control of a fully informed accused who has an operating mind. Thus, once it is established that the accused person has been informed of his or her rights, and understands them, and that the conduct of the police has not resulted in the accused being unable to exercise free will, the right to remain silent of an accused person who is detained and being interrogated has not been infringed.
Background Context
[11] On September 11, 2012, Detective Giampaola learned of the allegations JN was making against JH. Those allegations were to the effect that between August 1, 2012 and September 11, 2012, JH had kissed, fondled, and had oral sex with JN. At the time, JH was 35 and JN was 15. The allegations related to five discrete encounters, one being at the home of SW, where JH lived. SW was JH’s romantic and business partner.
[12] Detective Giampaola interviewed JN and her mother, LN, on September 12, 2012. At that time, Detective Giampaola obtained copies of text messages that had allegedly been exchanged between JH and JN. On September 13, 2012, Detective Giampaola interviewed SW. From her interviews with JN, LN, and SW, Detective Giampaola learned that SW had been made aware of JN’s allegations and the text messages that had allegedly been exchanged between JH and JN. SW had confronted JH in their regard. As well, it was Detective Giampaola’s understanding that JN’s parents, LN and RN, had confronted JH about the text messages and had told him not to have any further contact with JN.
[13] On the afternoon of September 13, 2012, Detective Giampaola telephoned JH and advised him that he was being charged with sexual offences; namely, sexual assault, sexual interference, and invitation to sexual touching. Detective Giampaola asked JH to turn himself in at the police station at 9 a.m. the following morning, at which time he would be arrested and charged with three sexual offences. She told him that he could contact a lawyer before coming to the police station but that, in any event, he would be given the opportunity of contacting a lawyer when he was at the police station. Shortly thereafter, JH called back Detective Giampaola and asked her to repeat the offences with which he would be charged.
[14] From what JH subsequently told Detective Giampaola during the interview, at some point he called the lawyer referral line and received a half-hour of free legal advice regarding his rights.
[15] On the morning of September 13, 2012, JH arrived at the police station at 8:17 a.m. Detective Giampaola went to the lobby to meet him at 9:23 a.m. She took him into a hallway where she charged him with sexual assault, sexual interference, invitation to sexual touching, and using a computer to contact a person under the age of 16 years for a criminal purpose. Detective Giampaola’s male partner did a cursory search of JH. JH was then handcuffed and escorted to a waiting area outside the cell block.
[16] At 9:25 a.m., Detective Giampaola advised JH of the specific charges and read to JH from her police handbook: (1) the right to counsel, (2) the right to remain silent, but that anything he said may be given in evidence, and (3) the secondary caution about communications with other persons in authority. Detective Giampaola asked JH if he understood his rights, and he responded that he did. When asked if he would like to call a lawyer, he responded that he would.
[17] Due to the number of prisoners being processed, there was a short delay before JH could be presented to the cell block sergeant. During that delay, Detective Giampaola completed the booking sheet. The cell block sergeant then spoke with JH and, once again, explained the charges he was facing. A special constable then did a more thorough search of JH. No issue is taken in regard to any interactions with police officers before the interview itself.
[18] JH was then taken to an interview room where he could speak with counsel of his choice. JH chose David Hughes’s name from a list of legal aid lawyers posted outside the door. At 9:51 a.m., Detective Giampaola placed a call to Mr. Hughes’s office. At 9:55 a.m., Detective Giampaola spoke with Mr. Hughes and advised of the charges JH was facing. JH then spoke privately with Mr. Hughes until 10:13 a.m. JH was then taken to an interview room. His interview with Detective Giampaola commenced at 10:18 a.m. The interview was monitored by Detective Giampaola’s partner.
Videotaped Statement with Detective Giampaola
[19] The interview lasted approximately one hour and twenty minutes and covers 85 pages of transcript.
[20] At the beginning of the interview, Detective Giampaola confirmed with JH that he had spoken to his lawyer, David Hughes, and that he had been satisfied with his advice. Moments later, Detective Giampaola confirmed with JH that he did not have to talk with Detective Giampaola if he did not want to. JH acknowledged that he knew that, and that his lawyer had advised him not to say anything. Detective Giampaola then reiterated that she did not want to influence JH in making a statement, and that it was absolutely his choice. JH indicated that he understood that.
[21] Detective Giampaola told JH that she wanted to explain everything to him so that he had an idea of everything before he next met with his lawyer. Before doing that, Detective Giampaola briefly confirmed with JH where he was living, with whom he was living, and that he worked in graphic design. She then referred to the charges against him and reiterated what JH had told her to the effect that he had not spoken with JN on the computer. At this point, JH interjected to say that it was just text messaging and one cannot text message on a computer. Detective Giampaola then explained to JH that, for the purpose of the charge against him relating to his communicating by computer with JN, JH’s smart phone was considered a computer.
[22] Detective Giampaola then used the permissible tactic of saying to JH that everyone with whom she had spoken had said that he was a really good person. JH volunteered how he felt about the allegations and how he could not believe what he had been told. Detective Giampaola undertook to be truthful with JH in explaining everything to him and again reiterated that it was JH’s choice whether he talked to her or not, but if he did talk to her, she wanted him to tell the truth. JH continued to volunteer information about discussions he had had with family members, his agreement not to have any further contact with JN, and his staying at his mother’s house. He acknowledged, as he did at numerous instances throughout the interview, that he realized the charges were serious and could wreck his life.
[23] JH showed no hesitation in agreeing with Detective Giampaola as to the occasions when he had been with JN and her brothers. When Detective Giampaola pressed him as to where the boys would have been playing on a computer, JH stated that he did not want to answer any more questions – he wished he could tell her his story and tell her the truth, but he could not. Despite saying this, JH immediately continued the conversation. Over the next six pages of transcript, he explained how he felt about JN, and he suggested reasons why she was making false allegations against him.
[24] Detective Giampaola went on to use various tactics to get JH to trust her and continue talking. She said that she would work just as hard for him, as presumably she was for the complainant. She suggested that maybe the complainant had misconstrued JH’s behaviour toward her. At this point, JH stated that he just wanted to know the next steps in the procedure, as he felt that everyone was assuming that he was guilty and he was going to have to prove that he was innocent.
[25] Next, Detective Giampaola provided more details to JH as to the specific allegations that JN was making. He interjected and responded verbally to each, concluding by saying that the allegations were huge, that none of it had happened, and it was all a lie. Detective Giampaola asked if there was anyone she should speak to who could vouch for him. JH responded – everyone in his family. But then he went on to say that really only JN could set things straight by telling the truth. At that point, JH clearly stated that that was all he had to say. Despite saying that, he kept going in the conversation. For the next few pages he urged Detective Giampaola to have JN examined by a physician to establish that she had never had any type of intercourse. In response to a question from Detective Giampaola, JH said that he had wanted to do a polygraph but had received legal advice against doing so.
[26] At this point, JH again stated that he had nothing more to say because he could feel that Detective Giampaola did not believe him. Detective Giampaola continued to speak with him, directing the conversation to the meeting JH had had with JN’s parents and SW, at which time the text messages had been discussed. JN continued to engage in the conversation, interjecting comments in a normal conversational fashion. He volunteered that he agreed with JN’s parents and SW that the texting between himself and JN had been inappropriate. He stated that some of JN’s behaviour toward him had been inappropriate, and he had told her parents about that. He spoke of caring about her and continuing to worry about her, despite the false allegations she was making against him.
[27] A few pages later, when Detective Giampaola asked him to describe JN, he started to respond, then said he did not want to talk about it anymore, but then continued without interruption to do so for eleven lines, followed by further dialogue. Shortly thereafter, he reiterated that he was going to leave it at that because all that stuff was devastating to him right then, but, once again, he continued in the conversation without objection for another sixteen pages of transcript. Detective Giampaola asked him about specific allegations. He denied that any of it had happened. He expressed how upset he was that the allegations were wrecking all aspects of his life.
[28] At page 52 of the transcript, when Detective Giampaola was stepping out of the room and asked JH to think whether there was something more important for him to tell her, he said that he did not want to say anymore, but added that he thought that he had been very helpful to her and had tried to make her understand. He stated: “I thought I answered a lot of your questions and I wasn’t even supposed to say one thing. And I tried to do that for you because I thought, I’m here”.
[29] Up to this point, the interaction between Detective Giampaola and JH had been amicable with an easy flow and little tension. When Detective Giampaola returned to the room with a handful of text messages, her tone became noticeably sharper and more pressing. Despite that, there is a lively dialogue about the texts that continued for several pages. At page 60, JH says: “… I’m just saying, what do you want me to tell ya? I told you enough. I wasn’t even supposed to talk to ya, and I’m trying to tell ya. So I talked to you just as a person to a person and I’m telling you the truth”.
[30] For the next nine pages of transcript, Detective Giampaola and JH interrupt and talk over each other in a somewhat heated exchange about whether JH had ever been sexually involved with another minor and, more particularly, SW’s daughter. During this exchange, JH repeated on eleven separate occasions that he could not say anything more. He repeated that like a mantra. When Detective Giampaola continued with her questioning, JH repeatedly said that she was making up the story. Then there is an interlude, during which Detective Giampaola explained to JH that SW would not let JH continue to live at her home, and the reasons for that, and JH repeated many times that he understood what Detective Giampaola was telling him. When Detective Giampaola went back to putting specific allegations to JH and telling him they were facts, he accused her of making everything up.
[31] At page 69, JH stated:
Okay well, I’m gonna say nothing at this point. Cause I tried to talk to you when they said don’t. I tried to talk to you. I tried to tell you the truth. And absolutely you don’t believe a word I say. Obviously you don’t believe a single word I say. And I’m tryin to be sincere and talk to you and you don’t believe one word. And you’re saying the craziest things to me. The craziest things that are coming out of your mouth are so absurd and crazy. And it’s like you’re tryin to convince me that I did these things that I didn’t do.
[32] At this point, Detective Giampaola tried to rattle JH by suggesting to him that his whole family was probably going to ostracize him and that, if the police suspected there may be other minors who he was involved with, they may do a media release and put his name in the paper. JH reassured Detective Giampaola that there was no one that she needed to worry about and that the only inappropriate thing he had done was the texting. When Detective Giampaola pressed JH about what she understood he had done in the past, he kept repeating that he did not want to hear anything anymore, and that he was not going to say anything else. Then he once again brought up the issue of getting the complainant medically tested to prove she was a virgin.
[33] Detective Giampaola responded by repeating in detail the allegations against JH, and emphasizing that they did not include vaginal or anal intercourse. She went on in an aggressive way to recount how badly he had treated JN, SW, and SW’s daughter. JH again repeated that he had nothing further to say. Detective Giampaola then tried various techniques to get JH re-engaged. She brought up the subject of what JN’s brothers may have seen and she suggested that maybe JN had instigated the sexual activity. JH responded:
I’m done answering your questions. So if you wanna keep talking to me, then you can keep talking to me but I’m not saying anything more cause I just tried sittin here and it was hard for me to sit here and listen to you. Cause you’re you’re spittin out all these lies.
[34] At this point, the topic shifted to where JH might be able to reside, and Detective Giampaola once against left the room. Upon her return, Detective Giampaola brusquely, and with some impatience, explained again the charges JH was facing and reviewed with him some issues relating to interim release. The interview ended on this note.
Analysis
General Observations
[35] The interview in question was an hour and twenty minutes in length. It occurred in the morning, after JH had spent the night at his mother’s home. JH appeared to be alert and focused – with nothing impairing his faculties. Shortly before the interview, Detective Giampaola had read to JH the right to remain silent, the caution, and the secondary caution. Immediately prior to coming into the interview, JH had spoken for 18 minutes with his lawyer of choice and had been advised not to say anything to the police. JH understood his rights and his lawyer’s advice.
[36] The interview took place in a standard interview room and was videotaped. Detective Giampaola, who is smaller than JH, sat at an appropriate distance from JH and posed no physical threat to him. JH was engaged in the conversation and controlled its direction at many instances. He showed no indication of being intimidated or unable to make his own decisions. In fact, he exuded confidence, smiling and joking at times, and leaning toward JH. When he got frustrated, he did not withdraw into himself; instead, he challenged Detective Giampaola with questions or allegations, often using strong language. He was steadfast throughout the interview in denying the allegations of sexual offences. All he allowed was that there had been some inappropriate text messages between himself and JN, and that he had been to certain places with JN and her brothers. The existence of the text messages was something he had already acknowledged with third parties.
Threats or Promises
[37] Threats or promises generally become improper only when, standing alone or in combination with other factors, they are strong enough to raise a reasonable doubt about whether the will of the accused has been overborne (Oickle, at para. 57). The most important consideration is to look for a quid pro quo offer.
[38] At no time during the interview did Detective Giampaola make any promises to JH. She did not hold out the prospect of leniency from the courts if he confessed to something. Aside from saying that she would work hard for him, as she was doing for the complainant, she did not undertake to seek a reduced charge or sentence for JH if he confessed. The issue of JH getting psychological help in exchange for a confession never arose.
[39] In regard to threats, at no time did Detective Giampaola tell JH it would be better if he told the truth. When referring to the truth, Detective Giampaola said that, if JH chose to talk with her, she would appreciate his being truthful. She also said that the interview was his opportunity to tell the truth. Finally, she accused him of not telling the truth. None of that amounted to improper questioning.
[40] The Defence takes particular exception to Detective Giampaola advising JH that, in some circumstances where the police were concerned that there may be other complainants who had not yet come forward, they did a media release publishing the name of a person accused of sexual offences. After advising him of this, Detective Giampaola asked JH if there were any other victims. The Defence argues that this was a threat to the effect that, if JH was not forthcoming about what he had done with JN and possibly other minors, the police might publish his name in the newspaper, whereas if he did open up, they would not. In this sense, there was a quid pro quo.
[41] First, Detective Giampaola did not frame her statement in this context. What she did was express a real concern that, in the past, JH may have acted inappropriately and may have committed a sexual offence against other minors, in addition to JN and SW’s daughter. She asked him repeatedly if that was the case. It was in this context that she explained that one option available to the police was to do a media release relating to his criminal charges to see if other complainants would come forward. I do not consider that statement, in this context, to have been a threat, veiled or otherwise. Second, and in any event, throughout the interview, JH was steadfast in his denial of having committed any sexual offences with any minors. In this regard, Detective Giampaola’s statement appeared to have no impact on what he subsequently said.
Oppression
[42] Behaviour on the part of Detective Giampaola, which the Defence argues was oppressive, occurred during the latter part of the interview when Detective Giampaola was challenging JH with specific allegations and JH was denying all of them and saying that they were ridiculous (pp. 60-76). This segment of the interview was relatively brief. Detective Giampaola and JH talked over each other in short, staccato comments. JH was giving as good as he was getting in terms of sharp and persistent communications. The tension level in the interchange was higher than it had been earlier, and Detective Giampaola was taking a less congenial attitude. JH was getting noticeably more frustrated with her questions. Despite this change in atmosphere, JH did not appear so worn down that he was losing the ability to decide whether or not he was going to say something. In fact, he very effectively held off Detective Giampaola by repeating he was not going to say anything more, and he did not give up any new information during this portion of the interview. Any information he provided, he had already provided to other people or had already provided to Detective Giampaola earlier in the interview.
[43] The Defence also alleges that, at p. 75 of the transcript, Detective Giampaola used the tactic of non-existent evidence. After Detective Giampaola asked JH who could vouch for him, she referred to JN’s brothers, who she suggested had seen JH and JN at the picnic table. When JH asked her what she thought they had seen, Detective Giampaola responded: “[t]hey know that you’re off in the woods. So she pulls down your shorts … and she gives you oral sex …” The Defence argues that the juxtaposition of these two sentences implies that Detective Giampaola was falsely stating that JN’s two brothers had witnessed JH and JN having oral sex. In that the police have never interviewed the two brothers, there was at the time, and still is, no evidence to this effect.
[44] There are no statements made by Detective Giampaola following the above statement that attempt to make any link between JN’s brothers and an alleged incident of oral sex. Nor is there any statement of JH responding to this suggestion, aside from his saying that everything Detective Giampaola was saying amounted to lies. There is nothing in the interview which followed this interchange that would lead me to believe that Detective Giampaola’s statement, if interpreted as suggesting that evidence existed when it did not, played any role whatsoever in inducing JH’s subsequent statements – none of which provided any significant new information to the police in any event.
Operating Mind and s. 7 of the Charter
[45] There is no evidence that, at the time of the interview, there was any external reason why JH may not have had an operating mind. There is no evidence that he was under the influence of alcohol or drugs, that he was sleep deprived, that he was physically in any distress, or that he did not understand the significance of where he was, the seriousness of the charges against him, and the substance of the questions being put to him.
[46] The Defence argues that it was the unrelenting nature of Detective Giampaola’s questions and her refusal to accept his repeated assertion that he did not want to say anything that resulted in JH not having an operating mind. In other words, the Defence alleges that the conduct of Detective Giampaola was overbearing and prevented JH from exercising his right to silence.
[47] I note that there were approximately 14 occasions when JH said something to the effect that “that’s all I really have to say”, “I don’t know what to say”, “I don’t wanna answer any more questions”, “I just wanna know what the next step is right now”, “I just can’t talk anymore”, “I really don’t wanna talk about it anymore”, and “I’m not gonna say anything more”, and on some of those occasions, there were a cluster of such statements. I acknowledge the concern that “police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities” (Singh, at para. 47). That concern does not raise a reasonable doubt about voluntariness in the circumstances of this case.
[48] On virtually all of the occasions when JH said that he was not going to answer any more questions, he continued to have a conversation with Detective Giampaola, pushing back against her allegations and, at times, raising questions of his own. He was demonstrating the exercise of free will. The only statement that requires some greater scrutiny is that at p. 69 where JH stated that he was not going to say anything further and went on to elaborate why, saying at the end of the paragraph: “[and] it’s like you’re tryin to convince me that I did these things that I didn’t do”. This statement suggests that JH was feeling the pressure to say something that was not true, against his will.
[49] This statement was made close to the end of the interview. Despite saying this, JH continued the dialogue and reiterated his denial that anything sexual had happened between him and JN. He provided no new information to Detective Giampaola. He did not change what he had previously said.
[50] The operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment” (Oickle, at para. 63). It is clear throughout the interview that JH knew what he was saying to Detective Giampaola, and he knew that whatever he said to her could be used against him. He had been given this warning by Detective Giampaola very shortly before coming into the interview, and he had presumably been told the same thing by his lawyer, with whom he spoke just before the interview commenced.
[51] Furthermore, it is clear from comments made by JH throughout the interview that he fully appreciated that he was under no obligation to speak to the police, and he was well aware that his lawyer was advising him not to say anything to the police. Detective Giampaola started the interview by acknowledging that JH did not have to speak with her if he did not want to, and the choice to do so was entirely his. JH repeatedly said that his lawyer had advised him to say nothing, but he was choosing to answer – at least some – of Detective Giampaola’s questions. JH exercised that right by agreeing to speak about some issues and refusing to answer questions about others.
[52] In short, JH showed considerable control throughout the interview and never strayed from his denial that he had not engaged in any sexual behaviour with JN.
Trickery
[53] Detective Giampaola utilized a number of standard police tactics – none of which crossed the line into the area of trickery that would shock the conscience of the community. Those include the following:
• She acknowledged that the complainant had some psychological issues;
• She said that possibly the complainant had been the instigator of the sexual activity;
• She bragged about the skill of the police service’s technical experts when searching for data on computers;
• She commended JH for stopping himself before more serious events occurred in regard to SW’s daughter;
• She said that she did not think JH was a bad guy;
• She spoke of how sorry she felt for JH’s partner; and
• She started the interview being congenial and friendly, but ratcheted up her tone and questioning style after the first break, as if she were playing good cop/bad cop all on her own.
[54] There is one tactic used by Detective Giampaola, and objected to by the Defence, in addition to anything previously mentioned, that requires comment.
[55] Right after Detective Giampaola said that JH was not this sort of bad person, she went on to say that, unfortunately, the whole family was probably going to ostracize him and it was going to be a difficult situation. This statement was not tied into any other statement. Detective Giampaola did not say, or imply, that JH should do something to avoid being ostracized. It was just a statement of fact, and one which JH indicated he also thought likely.
Conclusion Regarding Voluntariness
[56] I am convinced beyond a reasonable that the entirety of JH’s statement to Detective Giampaola was voluntary and represented the operation of his free will. There was no infringement of his right to remain silent under s. 7 of the Charter.
Aitken J.
Released: February 19, 2015
CITATION: R. v. H., 2015 ONSC 1031
COURT FILE NO.: 12-SA5106
DATE: 2015/02/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
– and –
J.J.H.
Accused
pre-trial ruling #1 regarding VOLUNTARINESS AND
charter SS. 7 AND 24(2)
Aitken J.
Released: February 19, 2015